Alexander v. Office of Personnel Management

21 F. App'x 919
Court of Appeals for the Federal Circuit·Decided October 18, 2001·No. No. 01-3165·Published

Opinion

DECISION

PER CURIAM.

Alex Alexander appeals from a final order of the Merit Systems Protection Board (“MSPB” or “Board”), sustaining the Office of Personnel Management’s (“OPM”) action that rated ineligible his application for the position of Immigration Agent, canceled any eligibility he may have obtained from this or any application he may have had pending for competitive positions, and debarred him from competition for, or appointment to, any position in the Federal Service until December 14, 1999. See Alexander v. Office of Pers. Mgmt., Nos. SF-0731-00-0009-I-1, SF-0731-99-0119-I-2, (M.S.P.B. Dec.8, 2000). Because Alexander has not demonstrated that the Board’s decision is in error, we affirm.

BACKGROUND

Alexander worked as a Detention Enforcement Officer (“DEO”) for the Immigration and Naturalization Service (“INS”) from May 6, 1996, until August 28, 1997. He applied for the position of Immigration Agent on or about July 22, 1997, and was investigated by the OPM pursuant to his application. In the course of its investigation, the OPM found that Alexander’s conduct as a DEO was incompatible with the position of Immigration Agent. The OPM made two specific charges: (1) misconduct/negligence in prior employment, and (2) dishonest conduct by making misleading statements to his supervisors about his leave request.

The first charge included four sub-parts, or “specifications,” including: (a) problems following orders and taking direction from his supervisor in the Los Angeles office, (b) unprofessional conduct in handling a tenant dispute at his home, (c) failure to follow proper signout procedures when he moved from the Los Angeles office to the San Diego office of the INS, and (d) unauthorized absences as well as failure to contact his supervisor.

The second charge stemmed from Alexander’s failure to report for work on July 5, 1997. Alexander had previously requested annual or administrative leave for [922] July 5, a request that was denied, and subsequently claimed he was sick after failing to report to work. Alexander submitted evidence of illness and was granted disability benefits for the period from July 6, 1997 through August 21, 1997. However, the OPM found insufficient evidence that Alexander was ill on July 5, and inferred that Alexander falsely claimed that he was sick after being denied annual or administrative leave.

After notifying Alexander and considering his response, the OPM sustained the charges and rated ineligible Alexander’s application for the position of Immigration Agent, canceled any eligibility he may have obtained from this or any application pending for competitive positions, and debarred him from competition for or appointment to any position in the Federal service until December 14, 1999. Alexander timely appealed the OPM’s decision to the MSPB. In an initial decision dated May 5, 2000, the Board upheld the decision of the OPM. Alexander then petitioned the full Board for review of the May 5, 2000 initial decision, but the Board denied the petition and made the initial decision final in an order dated December 8, 2000 (“final order”).

This appeal followed. We have jurisdiction over Alexander’s appeal from the Board’s final order pursuant to 28 U.S.C. § 1295(a)(9) (1994).

DISCUSSION

Our review of this appeal is limited in scope. We must affirm the decision of the Board unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994); Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 725 (Fed.Cir.1998). The focus of our review is to determine whether “there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination.” Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985) (internal quotations omitted).

Determinations of the credibility of witnesses is the province of the official who heard the testimony and observed witness demeanor, see Griessenauer v. Dep’t of Energy, 754 F.2d 361, 364 (Fed.Cir.1985), and will not be disturbed unless “inherently improbable or discredited by undisputed evidence or physical fact.” Dittmore-Freimuth Corp. v. United States, 182 Ct.Cl. 507, 390 F.2d 664, 685 (Ct.Cl.1968). Alexander’s burden on appeal is to demonstrate that the record does not contain “such relevant evidence as might be accepted by a reasonable mind as adequate to support the conclusion reached.” Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).

Alexander alleges that the Board committed errors of law and misapprehended various facts in its decision below. Although many of his arguments are presented for the first time on appeal or are not entirely clear on the record before us, we recognize that Alexander is acting pro se in this appeal. Accordingly, we address the allegations to the extent they can best be determined from Alexander’s brief.

Alexander alleges that the Board below improperly relied upon hearsay evidence provided during the testimony of several OPM witnesses, citing 5 U.S.C. § 2302, and argues that “personal knowledge” is required. Alexander argues that this provision forbade the OPM investigators from using hearsay evidence to support their findings. We disagree. This [923] court has previously explained that the “personal knowledge” requirement of section 2302 is directed not to forbidding hearsay, but instead to forestalling political interference:

that provision does not apply to employees of the agency who witnessed or were involved in an incident such as this, but rather relates to statements or recommendations by outsiders, like senators or congressmen; the legislative objective was to forestall political or partisan interference in personnel actions.

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Alexander v. Office of Personnel Management, 21 F. App'x 919 (Fed. Cir. 2001).

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